David Limbaugh

I truly don't know of any "conservative" judges who believe in judicial activism. The fact that liberals say originalist judges are merely activist judges with a conservative bent doesn't make it so. But it certainly serves to muck up the issue and create the false perception of a moral equivalence -- something the Left has refined to an art form.

Not that it's needed, but I found further proof of the Left's willingness to conspicuously embrace judicial activism, in reviewing the transcript of Democratic National Committee Chairman Howard Dean's appearance on NBC's "Meet the Press."

As DNC chairman, Dean speaks for the party. Right out of the box Sunday, in response to a question about the potential significance of the anticipated Republican decision to invoke the constitutional option to outlaw filibusters for judicial nominees, Dean said "? 48 percent of us didn't vote for President Bush, but we still have some say in shaping the agenda of the country."

This quote immediately reveals two things about Dean's (and the Left's) mindset concerning the judicial appointment issue. First, as I correctly asserted in a very recent column, Democrats seem to think they are entitled, as a minority party, to have their own judges appointed in proportion to the popular vote percentage their losing candidate (John Kerry) received in the election. Based on Dean's rants and other things I've read, I don't think I'm drawing an extreme inference.

More importantly, Dean, like Justice Marshall and, presumably, the lion's share of Democrat congressmen, makes no bones about admitting that he views the role of appellate judges as including policy making (agenda-shaping). If there were any doubt about Dean's meaning, he added a few minutes later (still in reference to the judicial appointment issue), "This is the last opportunity the Democrats have to say anything about public policy" considering that "one party is pretty well in charge in Washington."

In other words, Democrat congressmen should utilize the filibuster to reject originalist judges appointed by Republican presidents, no matter how qualified and honorable.

Democrats have done a good job snowing people into believing this judicial fight is purely one of partisan political rancor, but it is much more than that, from their perspective. It's a last ditch, desperation effort to hold on to the judiciary as a policy-making vehicle.

All of the foregoing underscores why the breaking news -- that Senate Republicans have once again caved by entering into a "bipartisan" compromise with Democrats to avert the constitutional option and undermine President Bush and his judicial appointment power -- is exceptionally troubling.

David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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